DOUBLE JEOPARDY
April 2001 |
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What's
is "double jeopardy"?
No, it's not a new game show. This is a legal term that has been around for a long,
long time, probably about eight centuries. Here's a little fictitious scenario, see if you
can guess what "double jeopardy" means:
The defendant has been charged with murder. His situation looks
dire, there is circumstantial evidence that places him at the scene of the crime, even
though there is no eye witness to the murder. The victim's widow has provided the police
with information that the defendant had a fight with the deceased on the night of the
murder and threatened him. She heard this as she passed the open door of his study, and
got a good look at the defendant. A few minutes later she heard a gunshot. She immediately
rang the police, who arrived five minutes later and questioned the defendant who was found
walking nearby. There is no forensic evidence to point to the perpetrator, but as we said,
the circumstantial evidence is pretty strong.
At the trial, under cross examination, the widow is confronted with
information that she never revealed to the prosecution - although she previously stated
that she arrived home at 8p.m, a few minutes before the gunshot (also heard by a
neighbour), in fact she arrived home twenty minutes later. This was confirmed by the
automatic toll charged to her account on the freeway near her home. At the end of the day
there is reasonable doubt and the defendant is found not guilty.
A week later, an informant tells a member of the homicide squad that
the former defendant and the widow have been seen in the back row of a movie, kissing and
cuddling. The police realise that they have been duped - clearly the widow had a prior
relationship with the defendant, and most probably the defendant knew her car had been
date stamped on the freeway.
Can the defendant be charged again? Tick, tick, tick…
And
the answer is...
No. Double jeopardy is a legal rule that operates to stop an accused person being
placed in jeopardy of conviction of the same crime on more than one occasion. In fact, in
our scenario, even if the widow admitted her part in the ruse, the defendant could not be
charged again.
But in England, there are moves afoot to change this situation. The Law Commission of
England and Wales has recommended that the law of double jeopardy be relaxed in
circumstances where there is compelling new evidence. There is support from the Home
Secretary Jack Straw, and a national mood that is spurred by tales of allegedly acquitted
murderers.
Is it fair?
Clearly it is not fair if a person can be acquitted after murdering someone -
the Home Office's National Crime Faculty has calculated that there are 35 cases for which
acquitted defendants might be successfully retried. Good, you say, let's get them while we
can!
Okay, but let's also look at this with a critical eye. Obviously we don't want
murderers to go free, but what are the consequences of a change in this long standing
policy (in fact why is it there in the first place?).
First, abandoning double jeopardy rule will make the police and the prosecution less
keen to pursue evidence with the appropriate diligence. After all, if you can charge an
accused again and again, you don't necessarily have to get it right the first time, do
you? In fact, why bother to look for someone else who might have committed the crime after
a defendant is acquitted? Better to simply pursue the first defendant and bring him to
trial again.
What about certainty and finality? Those acquitted of crimes would never know peace,
and the family of victims would continue to harbour the hope that a defendant might one
day be retried for the offence.
What if evidence is compelling?
The Law Commission proposes that the rule of double jeopardy would only be overturned
if:
- New evidence suggests a substantially stronger case;
The new evidence was not available earlier;
The sentence for the crime would be at least three years;
There was an almost certain conviction looming;
The retrial is in the interests of justice.
What we think
Law and order issues are seductive, it is easy to take the well trodden path and
believe that anyone tried for a crime is presumed guilty. Protections for accused are
never popular unless you are the person accused of a crime, and then it is suddenly a
compelling issue.
Similarly, it is the exceptional cases that make the news, those cases in which there
may be evidence that a guilty person was acquitted. But like most seductive concepts it is
simplistic. The double jeopardy rule is an integral part of a legal culture that places
the burden on the prosecution to find a person guilty of a crime. Once a judge has decided
that a person should be retried because of compelling evidence, it is going to be
impossible for the accused to avoid the suspicion of guilt.
As is so often the case in the law, attractive theories look decidedly sick in the
light of the realities of legal practice.
By Geoffrey Winn
Creative Director
www.law4u.com.au
Read this: The legal information contained above is
intended to be general information about the law. It is not a substitute for legal and
other professional advice. Lawscape Communications P/L does not accept responsibility for
loss to any person, who either acts or does not act because of this information.
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